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PHILIPPINE REPORTS ANNOTATED VOLUME 077


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Case Title:
Laurel vs. Misa
Citation: 77 Phil. 856
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[No. L-409. January 30, 1947]


ANASTACIO
respondent.

LAUREL,

petitioner,

vs.

ERIBERTO

MISA,

1. INTERNATIONAL AND CONSTITUTIONAL LAW; ALLEGIANCE


OF CITIZEN OR SUBJECT TO SOVEREIGN; NATURE OF.A
citizen or subject owes, not a qualified and temporary, but an
absolute and permanent allegiance, which consists in the obligation
of fidelity and obedience to his government or sovereign.
2. ID.; ID.; ID.; EFFECT OF ENEMY OCCUPATION.The absolute
and permanent allegiance of the inhabitants of a territory occupied
by the enemy to their legitimate government or sovereign is not
abrogated or severed by the enemy occupation, because the
sovereignty of the government or sovereign de jure is not
transferred thereby to the occupier.
3. ID. ; ID. ; ID. ; SOVEREIGNTY, EFFECT ON, OF ENEMY
OCCUPATION.The subsistence of the sovereignty of the
legitimate government in a territory occupied by the military forces
of the enemy during a war, "although the former is in fact
prevented from exercising the supremacy over them" is one of the
"rules of international law of our times."
4 . ID.; ID.; ID.; "TEMPORARY ALLEGIANCE" SIMILAR TO
ALLEGIANCE OF FOREIGNER TO GOVERNMENT OF HlS
RESIDENCE.The words

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"temporary allegiance," repudiated by Oppenheim and other
publicists, as descriptive of the relations borne by the inhabitants
of the territory occupied by the enemy toward the military
government established over them, may, at most, be considered
similar to the temporary allegiance which a foreigner owes to the
government or sovereign of the territory wherein he resides in
return for the protection he receives and does not do away with the
absolute and permanent allegiance which the citizen residing in a
foreign country owes to his own government or sovereign.
5. ID.; ID.; ID.; ID.; TREASON IN FOREIGN COUNTRY AND IN
TERRITORY UNDER MILITARY OCCUPATION.Just as a
citizen or subject of a government or sovereign may be prosecuted
for and convicted of treason committed in a foreign country, in the
same way an inhabitant of a territory occupied by the military
forces of the enemy may commit treason against his own legitimate
government or sovereign if he adheres to the enemies of the latter
by giving them aid and comfort.
6. ID.; ID.; ID.; ID.; ID.; ARTICLE 114 OF REVISED PENAL CODE,
APPLICABILITY OF.Article 114 of the Revised Penal Code, was
applicable to treason committed against the national security of the

legitimate government, because the inhabitants of the occupied


territory were still bound by their allegiance to the latter during
the enemy occupation.
7. ID.; ID.; ID.; ID.; POWER OF MILITARY OCCUPANT TO
CHANGE LAWS OR MAKE NEW ONES.Although the military
occupant is enjoined to respect or continue in force, unless
absolutely prevented by the circumstances, those laws that enforce
public order and regulate the social and commercial life of the
country, he has, nevertheless, all the powers of a de facto
government and may, at his pleasure, either change the existing
laws or make new ones when the exigencies of the military service
demand such action, that is, when it is necessary for the occupier to
do so for the control of the country and the protection of his army,
subject to the restrictions or limitations imposed by the Hague
Regulations, the usages established by civilized nations, the laws of
humanity and the requirements of public conscience.
8. ID.; ID.; ID.; ID.; MILITARY OCCUPANT CANNOT REPEAL OR
SUSPEND OPERATION OF LAW OF TREASON.Since the
preservation of the allegiance or the obligation of fidelity and
obedience of a citizen or subject to his government or sovereign
'does not demand from him a positive action, but only passive
attitude or forbearance from adhering to the enemy by giving the
latter aid and comfort, the occupant has no power, as a corollary of
the

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Laurel vs. Misa
preceding consideration, to repeal or suspend the operation of the
law of treason.
9. ID.; ID.; ID.; ID.; SUSPENDED ALLEGIANCE, EFFECT OF
THEORY OF, ADOPTED,Adoption of the petitioner's theory of
suspended allegiance would lead to disastrous consequences for
small and weak nations or states, and would be repugnant to the
laws of humanity and requirements of public conscience, for it
would allow invaders to legally recruit or enlist the Quisling
inhabitants of the occupied territory to fight against their own
government without the latter incurring the risk of being
prosecuted for treason, and even compel those who are not to aid
them in their military operation against the resisting enemy forces
in order to completely subdue and conquer the whole nation, and
thus deprive them all of their own independence or sovereignty
such theory would sanction the action of invaders in forcing the
people of a free and sovereign country to be a party in the nefarious
task of depriving themselves of their own freedom and
independence and repressing the exercise by them of their own
sovereignty; in other words, to commit a political suicide.

10. ID., SOVEREIGNTY, IN WHOM DOES IT RESIDE.Sovereignty


resides in the people of the Philippines.
11. ID.; ID.; COMMONWEALTH OF THE PHILIPPINES A
SOVEREIGN GovERNMENT.The Commonwealth of the
Philippines was a sovereign government, though not absolute but
subject to certain limitations imposed in the Independence Act and
incorporated as Ordinance appended to our Constitution.
12 . ID. ; ID. ; ID. ; QUESTIONS OF SOVEREIGNTY, POLITICAL.
The question of sovereignty is "a purely political question, the
determination of which by the legislative and executive
departments of any government conclusively binds the judges, as
well as all other officer, citizens and subjects of the country."

13 . ID. ; ID. ; ID. ; PHILIPPINE REPUBLIC, RIGHT OF, TO


PROSECUTE TREASON COMMITTED DURING JAPANESE
OCCUPATION.Just as treason may be committed against the
Federal as well as against the State Government, in the same way
treason may have been committed during the Japanese occupation
against the sovereignty of the United States as well as against the
sovereignty of the Philippine Commonwealth; and that the change
of our form of government from Commonwealth to Republic does
not affect the prosecution of those charged with the crime of
treason committed during the Commonwealth, because it is an
offense against the same government and the same sovereign
people, for Article XVIII of our Constitution provides that: "The
government established by this Constitution shall be known as the

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Commonwealth of the Philippines. Upon the final and complete
withdrawal of the sovereignty of the United States and the
proclamation of Philippine Independence, the Commonwealth of
the Philippines shall thenceforth be known as the Republic of the
Philippines."

ORIGINAL ACTION in the Supreme Court. Habeas corpus.


The facts are stated in the opinion of the court.
Claro M. Recto and Querube C. Makalintal for petitioner.
First Assistant Solicitor General Reyes and Solicitor Hernandez,
jr., for respondent.
RESOLUTION
"In G. R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the
Court, acting on the petition for habeas corpus filed by Anastacio
Laurel and based on the theory that a Filipino citizen who adhered
to the enemy giving the latter aid and comfort during the Japanese
occupation cannot be prosecuted for the crime of treason defined
and penalized by article 114 of the Revised Penal Code, for the
reason (1) that the sovereignty of the legitimate government in the
Philippines and, consequently, the correlative allegiance of Filipino
citizens thereto was then suspended; and (2) that there was a
change of sovereignty over these Islands upon the proclamation of
the Philippine Republic:
"(1) Considering that a citizen or subject owes, not a qualified
and temporary, but an absolute and permanent allegiance, which
consists in the obligation of fidelity and obedience to his
government or sovereign; and that this absolute and permanent
allegiance should not be confused with the qualified and temporary
allegiance which a foreigner owes to the government or sovereign of
the territory wherein he resides, so long as he remains there, in
return for the protection he receives, and which consists in the
obedience to the laws of the government or sovereign. (Carlisle vs.
United States, 21 Law. ed., 429; Secretary of State Webster Report
to the President of the United States in the case of Thraser, 6 Web.
Works, 526);
"Considering that the absolute and permanent allegiance of the
inhabitants of a territory occupied by the enemy to their legitimate
government or sovereign is not abrogated or severed by the enemy
occupation, because the sovereignty of the government or sovereign
de jure is not transferred thereby to the occupier, as we have held in
the cases of Co Kim Cham vs. Valdez Tan Keh and Dizon (75

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Phil., 113) and of Peralta vs. Director of Prisons (75 Phil., 285), and
if it is not transferred to the occupant it must necessarily remain
vested in the legitimate government; that the sovereignty vested in
the titular government (which is the supreme power which governs
a body politic or society which constitute the state) must be
distinguished from the exercise of the rights inherent thereto, and
may be destroyed, or severed and transferred to another, but it
cannot be suspended because the existence of sovereignty cannot be
suspended without putting it out of existence or divesting the
possessor thereof at least during the so-called period of suspension;
that what may be suspended is the exercise of the rights of
sovereignty with the control and government of the territory
occupied by the enemy passes temporarily to the occupant; that the
subsistence of the sovereignty of the legitimate government in a
territory occupied by the military forces of the enemy during the
war, 'although the former is in fact prevented from exercising the
supremacy over them' is one of the 'rules of international law of our
times'; (II Oppenheim, 6th Lauterpacht ed., 1944, p. 482),
recognized, by necessary implication, in articles 23, 44, 45, and 52
of Hague Regulation; and that, as a corollary of the conclusion that
the sovereignty itself is not suspended and subsists during the
enemy occupation, the allegiance of the inhabitants to their
legitimate government or sovereign subsists, and therefore there is
no such thing as suspended allegiance, the basic theory 011 which
the whole fabric of the petitioner's contention rests;
"Considering that the conclusion that the sovereignty of the
United States was suspended in Castine, set forth in the decision in
the case of United States vs. Rice, 4 Wheaton, 246, 253, decided in
1819, and quoted in our decision in the cases of Co Kim Cham vs.
Valdez Tan Keh and Dizon and Peralta vs. Director of Prisons,
supra, in connection with the question, not of sovereignty, but of the
existence of a government de facto therein and its power to
promulgate rules and laws in the occupied territory, must have been
based, either on the theory adopted subsequently in the Hague
Convention of 1907, that the military occupation of an enemy
territory does not transfer the sovereignty, or on the old theory that
such occupation transfers the sovereignty to the occupant; that, in
the first case, the word 'sovereignty' used therein should be
construed to mean the exercise of the rights of sovereignty, because
as this remains vested in the legitimate government and is not
transferred to the occupier, it cannot be suspended without putting
it out of existence or divesting said government thereof; and that in
the second case, that is, if the said conclusion or doctrine refers to
the suspension of the sovereignty itself, it has become obsolete after
the adoption of the Hague Regulations in 1907, and therefore it can
not be applied to the present case;

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"Considering that even adopting the words 'temporary allegiance,'
repudiated by Oppenheim and other publicists, as descriptive of the
relations borne by the inhabitants of the territory occupied by the
enemy toward the military government established over them, such
allegiance may, at most, be considered similar to the temporary
allegiance which a foreigner owes to the government or sovereign of
the territory wherein he resides in return for the protection he
receives as above described, and does not do away with the absolute
and permanent allegiance which the citizen residing in a foreign
country owes to his own government or sovereign; that just as a
citizen or subject of a government or sovereign may be prosecuted
for and convicted of treason committed in a foreign country, in the
same way an inhabitant of a territory occupied by the military
forces of the enemy may commit treason against his own legitimate
government or sovereign if he adheres to the enemies of the latter
by giving them aid and comfort; and that if the allegiance of a
citizen or subject to his government or sovereign is nothing more
than obedience to its laws in return for the protection he receives, it
would necessarily follow that a citizen who resides in a foreign
country or state would, on one hand, ipso facto acquire the
citizenship thereof since he has to obey, with certain exceptions, the
laws of that country which enforce public order and regulate the
social and commercial life, in return for the protection he receives,
and would, on the other hand, lose his original citizenship, because
he would not be bound to obey most of the laws of his own
government or sovereign, and would not receive, while in a foreign
country, the protection he is entitled to in his own;
"Considering that, as a corollary of the suspension of the exercise
of the rights of sovereignty by the legitimate government in the
territory occupied by the enemy military forces, because the
authority of the legitimate power to govern has passed into the
hands of the occupant (Article 43, Hague Regulations), the political
laws which prescribe the reciprocal rights, duties and obligation of
government and citizens, are suspended or in abeyance during
military occupation (Co Kim Cham vs. Valdez Tan Keh and Dizon,
supra), for the only reason that as they exclusively bear relation to
the ousted legitimate government, they are inoperative or not
applicable to the government established by the occupant; that the
crimes against national security, such as treason and espionage,
inciting to war, correspondence with hostile country, flight to
enemy's country, as well as those against public order, such as
rebellion, sedition, and disloyalty, illegal possession of firearms,
which are of political complexion because they bear relation to, and
are penalized by our Revised Penal Code as crimes against the
legitimate government, are also suspended or become inapplicable
as against the occupant, because they

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Laurel vs. Misa

can not be committed against the latter (Peralta vs. Director of


Prisons, supra); and that, while the offenses against public order to
be preserved by the legitimate government were inapplicable as
offenses against the invader for the reason above stated, unless
adopted by him, were also inoperative as against the ousted
government for the latter was not responsible for the preservation
of the public order in the occupied territory, yet article 114 of the
said Revised Penal Code, was applicable to treason committed
against the national security of the legitimate government, because
the inhabitants of the occupied territory were still bound by their
allegiance to the latter during the enemy occupation;
"Considering that, although the military occupant is enjoined to
respect or continue in force, unless absolutely prevented by the
circumstances, those laws that enforce public order and regulate
the social and commercial life of the country, he has, nevertheless,
all the powers of a de facto government and may, at his pleasure,
either change the existing laws or make new ones when the
exigencies of the military service demand such action, that is, when
it is necessary for the occupier to do so for the control of the country
and the protection of his army, subject to the restrictions or
limitations imposed by the Hague Regulations, the usages
established by civilized nations, the laws of humanity and the
requirements of public conscience (Peralta vs. Director of Prisons,
supra; 1940 United States Rules of Land Warfare 76, 77); and that,
consequently, all acts of the military occupant dictated within these
limitations are obligatory upon the inhabitants of the territory, who
are bound to obey them, and the laws of the legitimate government
which have not been adopted, as well and those which, though
continued in force, are in conflict with such laws and orders of the
occupier, shall be considered as suspended or not in force and
binding upon said inhabitants;
"Considering that, since the preservation of the allegiance or the
obligation of fidelity and obedience of a citizen or subject to his
government or sovereign does not demand f rom him a positive
action, but only passive attitude or forbearance from adhering to
the enemy by giving the latter aid and comfort, the occupant has no
power, as a corollary of the preceding consideration, to repeal or
suspend the operation of the law of treason, essential for the
preservation of the allegiance owed by the inhabitants to their
legitimate government, or compel them to adhere and give aid and
comfort to him; because it is evident that such action is not
demanded by the exigencies of the military service or not necessary
for the control of the inhabitants and the safety and protection of
his army, and because it is tantamount to practically transfer
temporarily to the occupant their allegiance to the titular
government or sovereign;

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and that, therefore, if an inhabitant of the occupied territory were
compelled illegally by the military occupant, through force, threat
or intimidation, to give him aid and comfort, the former may
lawfully resist and die if necessary as a hero, or submit thereto
without becoming a traitor;
"Considering that adoption of the petitioner's theory of
suspended allegiance would lead to disastrous consequences for
small and weak nations or states, and would be repugnant to the
laws of humanity and requirements of public conscience, for it
would allow invaders to legally recruit or enlist the Quisling
inhabitants of the occupied territory to fight against their own
government without the latter incurring the risk of being
prosecuted for treason, and even compel those who are not to aid
them in their military operation against the resisting enemy forces
in order to completely subdue and conquer the whole nation, and
thus deprive them all of their own independence or sovereignty
such theory would sanction the action of invaders in forcing the
people of a free and sovereign country to be a party in the nefarious
task of depriving themselves of their own freedom and
independence and repressing the exercise by them of their own
sovereignty; in other words, to commit a political suicide;
"(2) Considering that the crime of treason against the
government of the Philippines defined and penalized in article 114
of the Penal Code, though originally intended to be a crime against
said government as then organized by authority of the sovereign
people of the United States, exercised through their authorized
representative, the Congress and the President of the United
States, was made, upon the establishment of the Commonwealth
Government in 1935, a crime against the Government of the
Philippines established by authority of the people of the
Philippines, in whom the sovereignty resides according to section 1,
Article II, of the Constitution of the Philippines, by virtue of the
provision of section 2, Article XVI thereof, which provides that 'All
laws of the Philippine Islands * * * shall remain operative, unless
inconsistent with this Constitution * * * and all references in such
laws to the Government or officials of the Philippine Islands, shall
be construed, in so far as applicable, to refer to the Government and
corresponding officials under this Constitution;'
"Considering that the Commonwealth of the Philippines was a
sovereign government, though not absolute but subject to certain
limitations imposed in the Independence Act and incorporated as
Ordinance appended to our Constitution, was recognized not only
by the Legislative Department or Congress of the United States in
approving the Independence Law above quoted and the
Constitution of the Philippines, which contains the declaration that
'Sovereignty resides in the people and all government authority
emanates from

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PHILIPPINE REPORTS ANNOTATED


Laurel vs. Misa

them' (section 1, Article II), but also by the Executive Department


of the United States; that the late President Roosevelt in one of his
messages to Congress said, among others, 'As I stated on August 12,
1943, the United States in practice regards the Philippines as
having now the status as a government of other independent
nationsin fact all the attributes of complete and respected
nationhood' (Congressional Record, Vol. 29, part 6, page 8173); and
that it is a principle upheld by the Supreme Court of the United
States in many cases, among them in the case of Jones vs. United
States (137 U. S., 202; 34 Law. ed., 691, 696) that the question of
sovereignty is 'a purely political question, the determination of
which by the legislative and executive departments of any
government conclusively binds the judges, as well as all other
officers, citizens and subjects of the country.'
"Considering that section I (1) of the Ordinance appended to the
Constitution which provides that pending the final and complete
withdrawal of the sovereignty of the United States 'All citizens of
the Philippines shall owe allegiance to the United States', was one
of the few limitations of the sovereignty of the Filipino people
retained by the United States, but these limitations do not do away
or are not inconsistent with said sovereignty, in the same way that
the people of each State of the Union preserves its own sovereignty
although limited by that of the United States conferred upon the
latter by the States; that just as to reason may be committed
against the Federal as well as against the State Government, in the
same way treason may have been committed during the Japanese
occupation against the sovereignty of the United States as well as
against the sovereignty of the Philippine Commonwealth; and that
the change of our form of government from Commonwealth to
Republic does not affect the prosecution of those charged with the
crime of treason committed during the Commonwealth, because it is
an offense against the same government and the same sovereign
people, for Article XVIII of our Constitution provides that The
government established by this Constitution shall be known as the
Commonwealth of the Philippines. Upon the final and complete
withdrawal of the sovereignty of the United States and the
proclamation of Philippine independence, the Commonwealth of the
Philippines shall thenceforth be known as the Republic of the
Philippines';
"This Court resolves, without prejudice to write later on a more
extended opinion, to deny the petitioner's petition, as it is hereby
denied, for the reasons above set forth and for others to be stated in
the said opinion, without prejudice to concurring opinion therein, if
any. Messrs. Justices Paras and Hontiveros dissent in a separate
opinion. Mr. Justice Perfecto concurs in a separate opinion."

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PERFECTO, J., concurring:
Treason is a war crime. It is not an all-time offense. It cannot be
committed in peace time. While there is peace, there are no traitors.
Treason may be incubated when peace reigns. Treasonable acts may
actually be perpetrated during peace, but there are no traitors until
war has started.
As treason is basically a war crime, it is punished by the state as
a measure of self-defense and self-preservation. The law of treason
is an emergency measure. It remains dormant until the emergency
arises. But as soon as war starts, it is relentlessly put into effect.
Any lukewarm attitude in its enforcement will only be consistent
with national harakiri. All war efforts would be of no avail if they
should be allowed to be sabotaged by fifth columnists, by citizens
who have sold their country out to the enemy, or any other kind of
traitors, and this would certainly be the case if the law cannot be
enforced under the theory of suspension.
Petitioner's thesis that allegiance to our government was
suspended during enemy occupation is advanced in support of the
proposition that, since allegiance is identical with obedience to law,
during the enemy occupation, the laws of the Commonwealth were
suspended. Article 114 of the Revised Penal Code, the law
punishing treason, under the theory, was one of the laws obedience
to which was also suspended.
Allegiance has been defined as the obligation for fidelity and
obedience which the individual owes to his government or his
sovereign in return for the protection which he receives.
" 'Allegiance,' as the term is generally used, means fealty or fidelity to the
government of which the person is either a citizen or subject. Murray vs.
The Charming Betsy, 6 U. S. (2 Cranch), 64, 120; 2 Law. ed., 208.
" 'Allegiance' was said by Mr. Justice Story to be 'nothing more than the
tie or duty of obedience of a subject to the sovereign,
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Laurel vs. Misa

under whose protection he is.' United States vs. Wong Kim Ark, 18 S. Ct.,
456, 461; 169 U. S., 649; 42 Law. ed., 890. "Allegiance is that duty which is
due from every citizen to the state, a political duty binding on him who
enjoys the protection of the Commonwealth, to render service and fealty to
the federal government. It is that duty which is reciprocal to the right of
protection, arising from the political relations between the government
and the citizen. Wallace vs. Harmstad, 44 Pa. (8 Wright), 492, 501. "By
'allegiance' is meant the obligation to fidelity and obedience which the
individual owes to the government under which he lives, or to his
sovereign, in return for the protection which he receives. It may be an
absolute and permanent obligation, or it may be a qualified and temporary
one. A citizen or subject owes an absolute and permanent allegiance to his
government or sovereign, or at least until, by some open and distinct act,
he renonunces it and be. comes a citizen or subject of another government
or sovereign, and an alien while domiciled in a country owes it a
temporary allegiance, which is continuous during his. residence. Carlisle
vs. United States, 83 U. S. (16 Wall.), 147, 154; 21 Law ed., 426.
" 'Allegiance/ as defined by Blackstone, 'is the tie or ligament which
binds the subject to the King, in return for that protection which the King
affords the subject. Allegiance, both expressed and implied, is of two sorts,
the one natural, the other local, the former being perpetual, the latter
temporary. Natural allegiance is such as is due from all men born within

the King's dominions immediately upon their birth, for immediately upon
their birth they are under the King's protection. Natural allegiance is
perpetual, and for this reason, evidently founded on the nature of
government. Allegiance is a debt due from the subject upon an implied
contract with the prince that so long as the one affords protection the other
will demean himself faithfully. Natural-born subjects have a great variety
of rights which they acquire by being born within the King's liegance,
which can never be forfeited but by their own misbehaviour; but the rights
of aliens are much more circumscribed, being acquired only by residence,
and lost whenever they remove. If an alien could acquire a permanent
property in lands, he must owe an allegiance equally permanent to the
King, which would probably be inconsistent with that which he owes his
natural liege lord; besides, that thereby the nation might, in time, be
subject to foreign influence and feel many other inconveniences.' Indians
within the state are not aliens, but citizens owing allegiance to the
government of a state, for they receive protection from the government and
are subject to its laws. They are born in allegiance to the government of
the state. Jackson vs. Goodell, 20 Johns., 188, 911." (3 Words and Phrases,
Permanent ed., pp. 226-227.)
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"Allegiance.Fealty or fidelity to the government of which the person is
'either a citizen or subject; the duty which is due from every citizen to the
state; a political duty, binding on him who enjoys the protection of the
commonwealth, to render service and fealty to the federal government; the
obligation of fidelity and obedience which the individual owes to the
government or to the sovereign under which he lives in return for the
protection he receives; that duty which is reciprocal to the right of
protection, arising from the political relations between the government
and the citizen.
"Classification.Allegiance is of four kinds, namely: (1) Natural
allegiancethat which arises by nature and birth; (2) acquired allegiance
that arising through some circumstance or act other than birth, namely,
by denization or naturalization; (3) local allegiancethat arising from
residence simply within the country, for however short a time; and (4) legal
allegiancethat arising from oath, taken usually at the town or leet, for,
by the common law, the oath of allegiance might be tendered to every one
upon attaining the age of twelve years." (3 C. J. S., p. 885.)
"Allegiance.The obligation of fidelity and obedience which the
individual owes to the government under which he lives, or to his
sovereign in return for the protection he receives. 15 R. C. L., 140."
(Ballentine, Law Dictionary, p. 68.)
" 'Allegiance/ as its etymology indicates, is the name for the tie which
binds the citizen to his statethe obligation of obedience and support
which he owes to it. The state is the political person to whom this liege
fealty is due. Its substance is the aggregate of persons owing this
allegiance. The machinery through which it operates is its government.
The persons who operate this machinery constitute its magistracy. The
rules of conduct which the state utters or enforces are its law, and
manifest its will. This will, viewed as legally supreme, is its sovereignty."
(W. W. Willoughby, Citizenship and Allegiance in Constitutional and
International Law, 1 American Journal of International Law, p. 915.)
'The obligations flowing from the relation of a state and its nationals are
reciprocal in character. This principle had been aptly stated by the
Supreme Court of the United States in its opinion in the case of Luria vs.
United States:
"Citizenship is membership in a political society and implies a duty of
allegiance on the part of the member and a duty of protection on the part
of the society. These are reciprocal obligations, one being a compensation
for the other." (3 Hackworth, Digest of International Law, 1942 ed., p. 6.)
"Allegiance.The tie which binds the citizen to the government, in
return for the protection which the government affords him. The

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duty which the subject owes to the sovereign, correlative with the
protection received.
"It is a comparatively modern corruption of ligeance (ligeantia), which is
derived from liege (ligius), meaning absolute or unqualified. It signified
originally liege fealty, i. e., absolute and unqualified fealty. 18 L. Q. Rev.,
47.
*

"Allegiance may be an absolute and permanent obligation, or it may be


a qualified and temporary one; the citizen or subject owes the former to his
government or sovereign, until by some act he distinctly renounces it,
whilst the alien domiciled in the country owes a temporary and local
allegiance continuing during such residence. (Carlisle vs. United States, 16
Wall. [U. S.], 154; 21 Law. ed., 426." (1 Bouvier's Law Dictionary, p. 179.)

The above quotations express ideas that do not fit exactly into the
Philippine pattern in view of the revolutionary insertion in our
Constitution of the fundamental principle that "sovereignty resides
in the people and all government authority emanates from them."
(Section 1, Article II.) The authorities above quoted, judges and
juridical publicists define allegiance with the idea that sovereignty
resides somewhere else, on symbols or subjects other than the
people themselves. Although it is possible that they had already
discovered that the people and only the people are the true
sovereign, their minds were not yet free from the shackles of the
tradition that the powers of sovereignty have been exercised by
princes and monarchs, by sultans and emperors, by absolute and
tyrannical rules whose ideology was best expressed in the famous
words of one of the kings of France: "L'etat c'est moi," or such other
persons or group of persons posing as the government, as an entity
different and in opposition to the people themselves. Although
domocracy has been known ever since old Greece, and modern
democracies function on the assumption that sovereignty resides in
the people, nowhere is such principle more imperative than in the
pronouncement embodied in the fundamental law of our people.
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To those who think that sovereignty is an attribute of government,
and not of the people, there may be some plausibility in the
proposition that sovereignty was suspended during the enemy
occupation, with the consequence that allegiance must also have
been suspended, because our government stopped to function in the
country. But the idea cannot have any place under our Constitution.
If sovereignty is an essential attribute of our people, according to
the basic philosophy of Philippine democracy, it could not have been
suspended during the enemy occupation. Sovereignty is the very life
of our people, and there is no such thing as "suspended life." There
is no possible middle situation between life and death. Sovereignty
is the very essence of the personality and existence of our people.
Can anyone imagine the possibility of "suspended personality" or
"suspended existence" of a people? In no time during enemy
occupation have the Filipino people ceased to be what they are.
The idea of suspended sovereignty or suspended allegiance is
incompatible with our Constitution.
There is similarity in characteristics between allegiance to the
sovereign and a wife's loyalty to her husband. Because some

external and insurmountable force precludes the husband from


exercising his marital powers, functions, and duties, and the wife is
thereby deprived of the benefits of his protection, may the wife
invoke the theory of suspended loyalty and may she freely share her
bed with the assailant of their home? After giving aid and comfort
to the assailant and allowing him to enjoy her charms during the
former's stay in the invaded home, may the wife allege as defense
for her adultery the principle of suspended conjugal fidelity?
Petitioner's thesis on change of sovereignty at the advent of
independence on July 4, 1946, is unacceptable. We have already
decided in Brodett vs. De la Rosa and Vda. de Escaler (p. 752, ante)
that the Constitution of the Republic is the same as that of the
Commonwealth. The advent of
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independence had the effect of changing the name of our


Government and the withdrawal by the United States of her power
to exercise f unctions of sovereignty in the Phiilippines. Such facts
did not change the sovereignty of the Filipino people. That
sovereignty, following our constitutional philosophy, has existed
ever since our people began to exist. It has been recognized by the
United States of America, at least since 1935, when President
Roosevelt approved our Constitution. By such act, President
Roosevelt, as spokesman of the American people, accepted and
recognized the principle that sovereignty resides in the people that
is, that Philippine sovereignty resides in the Filipino people.
The same sovereignty had been internationally recognized long
before the proclamation of independence on July 4, 1946. Since the
early part of the Pacific war, President Quezon had been sitting as
representative of a sovereign people in the Allied War Council, and
in June, 1945, the same Filipino people took partoutstanding and
brilliant, it may be addedin the drafting and adoption of the
charter of the United Nations, the unmistakable forerunner of the
future democratic federal constitution of the world government
envisioned by all those who adhere to the principle of unity of all
mankind, the early realization of which is anxiously desired by all
who want to be spared the sufferings, misery and disaster of
another war.
Under our Constitution, the power to suspend laws is of
legislative nature and is lodged in Congress. Sometimes it is
delegated to the Chief Executive, such as the power granted by the
Election Code to the President to suspend the election in certain
districts and areas for strong reasons, such as when there is
rebellion, or a public calamity, but it has never been exercised by
tribunals. The Supreme Court has the power to declare null and
void all laws violative of the Constitution, but it has no power,
authority, or jurisdiction to suspend or declare suspended any valid
law, such as the one on treason which petitioner wants to be
included among the laws of the Commonwealth which, by

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his theory of suspended allegiance and suspended sovereignty, he
claims have been suspended during the Japanese occupation.
Suppose President Quezon and his government, instead of going
from Corregidor to Australia, and later to Washington, had fled to
the mountains of Luzon, and a group of Filipino renegades should
have killed them to serve the interests of the Japanese imperial
forces. By petitioner's theory, those renegades cannot be prosecuted
for treason or for rebellion or sedition, as the laws punishing them
were suspended. Such absurd result betrays the untenability of the
theory.
"The defense of the State is a prime duty of Government, and in
the fulfillment of that duty all citizens may be required by law to
render personal, military or civil service." Thus, section 2 of Article
II of the Constitution provides. That duty of defense becomes more
imperative in time of war and when the country is invaded by an
aggressor nation. How can it be fulfilled if the allegiance of the
citizens to the sovereign people is suspended during enemy
occupation? The framers of the Constitution surely did not
entertain even for a moment the absurdity that when the allegiance
of the citizens to the sovereign people is more needed in the defense
of the survival of the state, the same should be suspended, and that
upon such suspension those who may be required to render
personal, military or civil service may claim exemption from the
indispensable duty of serving their country in distress.
Petitioner advances the theory that protection is the
consideration of allegiance. He argues that the Commonwealth
Government having been incapacitated during enemy occupation to
protect the citizens, the latter were relieved of their allegiance to
said government. The proposition is untenable. Allegiance to the
sovereign is an indispensable bond for the existence of society. If
that bond is dissolved, society has to disintegrate. Whether or not
the existence of the latter is the result of the social compact
mentioned
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by Roseau, there can be no question that organized society would be


dissolved if it is not united by the cohesive power of the citizen's
allegiance. Of course, the citizens are entitled to the protection of
their government, but whether or not that government fulfills that
duty, is immaterial to the need of maintaining the loyalty and
fidelity of allegiance, in the same way that the physical forces of
attraction should be kept unhampered if the life of an individual
should continue, irrespective of the ability or inability of his mind to
choose the most effective measures of personal protection.
After declaring that all legislative, executive, and judicial
processes had during and under the Japanese regime, whether
executed by the Japanese themselves or by Filipino officers of the
puppet government they had set up, are null and void, as we have
done in our opinions in Co Kim Cham vs. Valdez Tan Keh and Dizon
(75 Phil., 113), in Peralta vs. Director of Prison (75, Phil., 285), and
in several other cases where the same question has been mentioned,
we cannot consistently accept petitioner's theory.
If all laws or legislative acts of the enemy during the occupation
were null and void, and as we cannot imagine the existence of
organized society, such as the one constituted by the Filipino people,
without laws governing it, necessarily we have to conclude that the

laws of the Commonwealth were the ones in effect during the


occupation and the only ones that could claim obedience from our
citizens.
Petitioner would want us to accept the thesis that during the
occupation we owed allegiance to the enemy. To give way to that
paradoxical and disconcerting allegiance, it is suggested that we
accept that our allegiance to our legitimate government was
suspended. Petitioner's proposition has to fall by its own weight,
because of its glaring absurdities. Allegiance, like its synonyms,
loyalty and fidelity, is based on feelings of attraction, love,
sympathy, admiration, respect, veneration, gratitude, amity, under873

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standing, friendliness. These are the feelings or some of the feelings
that bind us to our own people, and are the natural roots of the duty
of allegiance we owe them. The enemy only provokes repelling and
repulsive feelingshate, anger, vexation, chagrin, mortification,
resentment, contempt, spitef ulness. The natural incompatibility of
political, social and ethical ideologies, between our people and the
Japanese, making impossible the existence of any feeling of
attraction between them, aside from the initial fact that the
Japanese invaded our country as our enemy, was aggravated by the
morbid complexities of haughtiness, braggadocio and beastly
brutality of the Nippon soldiers and officers in their dealings with
even the most inoffensive of our citizens.
Giving bread to our enemy, and, after slapping one side of our
face, offer him the other to be further slapped, may appear to be
divinely charitable, but to make them a reality, it is necessary to
change human nature. Political actions, legal rules, and judicial
decisions deal with human relations, taking man as he is, not as he
should be. To love the enemy is not natural. As long as human
psychology remains as it is, the enemy shall always be hated. Is it
possible to conceive an allegiance based on hatred?
The Japanese, having waged against us an illegal war
condemned by prevailing principles of international law, could not
have established in our country any government that can be legally
recognized as de facto. They came as bandits and ruffians, and it is
inconceivable that banditry and ruffianism can claim any duty of
allegianceeven a temporary onefrom a decent people.
One of the implications of petitioner's theory, as intimated
somewhere, is that the citizens, in case of invasion, are free to do
anything not forbidden by the Hague Conventions. Anybody will
notice immediately that the result will be the doom of small nations
and peoples, by whetting the covetousness of strong powers prone
on imperialistic practices. In the imminence of invasion, weakhearted

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soldiers of the smaller nations will readily throw away their arms to
rally behind the paladium of the invaders.
Two of the three great departments of our Government have
already rejected petitioner's theory since September 25, 1945, the
day when Commonwealth Act No. 682 took effect. By said act,
creating the People's Court to try and decide all cases of crime
against national security "committed between December 8, 1941
and September 2, 1945," (section 2), the legislative and executive
departments have jointly declared that during the period above
mentioned, including the time of Japanese occupation, all laws
punishing crimes against national security, including article 114 of
the Revised Penal Code, punishing treason, had remained in full
effect and should be enforced.
That no one raised a voice in protest against the enactment of
said act and that no one, at the time the act was being considered
by the Senate and the House of Representatives, ever dared to
expose the uselessness of creating a People's Court to try crimes
which, as claimed by petitioner, could not have been committed as
the laws punishing them have been suspended, is a historical fact of
which the Supreme Court may take judicial notice. This fact shows
universal and unanimous agreement of our people that the laws of
the Commonwealth were not suspended and that the theory of
suspended allegiance is just an afterthought provoked by a
desperate effort to help quash the pending treason cases at any
cost.
Among the arguments adduced in favor of petitioner's theory is
that it is based on generally accepted principles of international
law, although this argument becomes futile by petitioner's
admission that the theory is advantageous to strong powers but
harmful to small and weak nations, thus hinting that the latter
cannot accept it by heart. Suppose we accept at face value the
premise that the theories, urged by petitioner, of suspended
allegiance and suspended sovereignty are based on generally
accepted principles of international law. As the latter forms part of
our laws by virtue of the provisions of section 3 of Article II of the
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Constitution, it seems that there is no alternative but to accept the
theory. But the theory has the effect of suspending the laws,
especially those political in nature. There is no law more political in
nature than the Constitution of the Philippines. The result is an
inverted reproduction of the Greek myth of Saturn devouring his
own children. Here, under petitioner's theory, the offspring devours
its parent.
Can we conceive of an instance in which the Constitution was
suspended even for a moment?
There is conclusive evidence that the legislature, as
policydetermining agency of government, even since the Pacific war
started on December 7, 1941, intimated that it would not accept the
idea that our laws should be suspended during enemy occupation. It
must be remembered that in the middle of December, 1941, when
Manila and other parts of the archipelago were under constant
bombing by Japanese aircraft and enemy forces had already set foot
somewhere in the Philippines, the Second National Assembly
passed Commonwealth Act No. 671, which came into effect on
December 16, 1941. When we approved said act, we started from
the premise that all our laws shall continue in effect during the

emergency, and in said act we even went to the extent of


authorizing the President "to continue in force laws and
appropriations which would lapse or otherwise become inoperative,"
(section 2, [d]), and also to "promulgate such rules and regulations
as he may deem necessary to carry out the national policy," (section
2), that "the existence of war between the United States and other
countries of Europe and Asia, which involves the Philippines,
makes it necessary to invest the President with extraordinary
powers in order to meet the resulting emergency." (Section 1.) To
give more emphasis to the intimation, we provided that the rules
and regulations provided "shall be in force and effect until the
Congress of the Philippines shall otherwise provide," foreseeing the
possibility that Congress may not meet as scheduled as a result of
the emergency, including invasion and occupation by
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the enemy- Everybody was then convinced that we did not have
available the necessary means of repelling effectively the enemy
invasion.
Maybe it is not out of place to consider that the acceptance of
petitioner's theory of suspended allegiance will cause a great
injustice to those who, although innocent, are now under indictment
for treason and other crimes involving disloyalty to their country,
because their cases will be dismissed without the opportunity for
them to revindicate themselves. Having been acquitted upon a mere
legal technicality which appears to us to be wrong, history will
indiscriminately classify them with the other accused who were
really traitors to their country. Our conscience revolts against the
idea of allowing the innocent ones to go down in the memory of
future generations with the infamous stigma of having betrayed
their own people. They should not be deprived of the opportunity to
show through the due process of law that they are free from all
blame and that, if they were really patriots, they acted as such
during the critical period of test.
HILADO, J., concurring:
I concur in the result reached in the majority opinion to the effect
that during the so-called Japanese occupation of the Philippines
(which was nothing more than the occupation of Manila and certain
other specific regions of the Islands which constituted the minor
area of the Archipelago) the allegiance of the citizens of this country
to their legitimate government and to the United States was not
suspended, as well as the ruling that during the same period there
was no change of sovereignty here; but my reasons are different and
I proceed to set them f orth:
I. SUSPENDED ALLEGIANCE
(a) Before the horror and atrocities of World War I, which were
multiplied more than a hundred-fold in World War II, the nations
had evolved certain rules and principles which came to be known as
International Law, governing their conduct with each other and
toward their

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respective citizens and inhabitants, in the armed forces or in
civilian life, in time of peace or in time of war. During the ages
which preceded that first world conflict the civilized governments
had no realization of the potential excesses of which "men's
inhumanity to man" could be capable. Up to that time war was, at
least under certain conditions, considered as sufficiently justified,
and the nations had not on that account, proscribed nor renounced
it as an instrument of national policy, or as a means of settling
international disputes. It is not for us now to dwell upon the
reasons accounting for this historical fact. Suffice it to recognize its
existence in history.
But when in World War I civilized humanity saw that war could
be, as it actually was, employed for entirely different reasons and
from entirely different motives, compared to previous wars, and the
instruments and methods of warfare had been so materially
changed as not only to involve the contending armed forces on well
defined battlefields or areas, on land, in the sea, and in the air, but
to spread death and destruction to the innocent civilian populations
and to their properties, not only in the countries engaged in the
conflict but also in neutral ones, no less than 61 civilized nations
and governments, among them Japan, had to formulate and
solemnly subscribe to the now famous Briand-Kellogg Pact in the
year 1928. As said by Justice Jackson of the United States Supreme
Court, as chief counsel for the United States in the prosecution of
"Axis war criminals," in his report to President Truman of June 7,
1945:
"International law is not capable of development by legislation, for there is
no continuously sitting international legislature. Innovations and
revisions in international law are brought about by the action of
governments designed to meet a change in circumstances. It grows, as did
the common law, through decisions reached from time to time in adopting
settled principles to new situations.
*

"After the shock to civilization of the war of 1914-1918, however, a


marked reversion to the earlier and sounder doctrines of interna

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tional law took place. By the time the Nazis came to power it was
thoroughly established that launching an aggressive war or the institution
of war by treachery was illegal and that the defense of legitimate warfare
was no longer available to those who engaged in such an enterprise. It is
high time that we act on the juridical principle that aggressive warmaking is illegal and criminal.
"The re-establishment of the principle of justifiable war is traceable in
many steps. One of the most significant is the Briand-Kellogg Pact of 1928
by which Germany, Italy, and Japan, in common with the United States
and practically all the nations of the world, renounced war as an
instrument of national policy, bound themselves to seek the settlement of
disputes only by pacific means, and condemned recourse to war for the
solution of international controversies. "Unless this Pact altered the legal
status of wars of aggression, it has no meaning at all and comes close to
being an act of deception. In 1932 Mr. Henry L. Stimson, as United States
Secretary of State, gave voice to the American concept of its effect. He said,
'war between nations was renounced by the signatories of the
BriandKellogg Treaty. This means that it has become illegal throughout
practically the entire world It is no longer to be the source and subject of
rights. It is no longer to be the principle around which the duties, the
conduct, and the rights of nations revolve. It is an illegal thing * * *. By
that very act we have made obsolete many legal precedents and have given
the legal profession the task of re-examining many of its Codes and
treaties.'
"This Pact constitutes only one reversal of the viewpoint that all war is
legal and has brought international law into harmony with the common
sense of mankindthat unjustifiable war is a crime.
"Without attempting an exhaustive catalogue, we may mention the
Geneva Protocol of 1924 for the Pacific Settlement of International
Disputes, signed by the representatives of forty-eight governments, which
declared that 'a war of aggression constitutes * * * an international crime.'
"The Eighth Assembly of the League of Nations in 1927, on unanimous
resolution of the representatives of forty-eight member-nations, including
Germany, declared that a war of aggression constitutes an international
crime. At the Sixth Pan-American Conference of 1928, the twenty-one
American Republics unanimously adopted a resolution stating that 'war of
aggression constitutes an international crime against the human species.'
*

"We therefore propose to charge that a war of aggression is a crime, and


that modem international law has abolished the defense that those who
incite or wage it are engaged in legitimate business. Thus may the forces
of the law be mobilized on the side of peace."

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("U. S. A.An American Review," published by the United States Office of
War Information, Vol. 2, No. 10; italics supplied.)

When Justice Jackson speaks of "a marked reversion to the earlier


and sounder doctrines of international law" and "the reestablishment of the principle of justifiable war," he has in mind no
other than "the doctrine taught by Grotius, the father of
international law, that there is a distinc-tion between the just and
the unjust warthe war of defense and the war of aggression" to
which he alludes in an earlier paragraph of the same report.
In the paragraph of said report immediately preceding the one
last above mentioned Justice Jackson says that "international law
as taught in the 19th and the early part of the 20th century
generally declared that war-making was not illegal and no crime at
law." But, as he says in one of the paragraphs hereinabove quoted
from that report, the Briand-Kellogg Pact constitutes a reversal of
the viewpoint that all war is legal and has brought international
law into harmony with the common sense of mankindthat
unjustifiable war is a crime. Then he mentions as other reversals of
the same viewpoint, the Geneva Protocol of 1924 for the Pacific
Settlement of International Disputes, declaring that a war of
aggression constitutes an international crime; the 8th assembly of
the League of Nations in 1927, declaring that a war of aggression
constitutes an international crime; and the 6th Pan-American
Conference of 1928, which unanimously adopted a resolution
stating that war of aggression constitutes an international crime
against the human species: which enumeration, he says, is not an
attempt at an exhaustive catalogue.
It is not disputed that the war started by Japan in the Pacific,
first, against the United States', and later, in rapid succession,
against other allied nations, was a war of aggression and utterly
unjustifiable. More aggressive still, and more unjustifiable, as
admitted on all sides, was its attack against the Philippines and its
consequent invasion and occupation of certain areas thereof.
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Laurel vs. Misa

Some of the rules and principles of international law which have


been cited for petitioner herein in support of his theory of
suspended allegiance, have been evolved and accepted during those
periods of the history of nations when all war was considered legal,
as stated by Justice Jackson, and the others have reference to
military occupation in the course of really justifiable war.
Japan in subscribing the Briand-Kellogg Pact thirteen years
before she started the aggressive war which threw the entire Pacific
area into a seething cauldron from the last month of 1941 to the
first week of September, 1945, expressly agreed to outlaw, proscribe
and renounce war as an instrument of national policy, and bound
herself to seek the settlement of her disputes with other nations
only by pacific means. Thus she expressly gave her consent to that
modification of the then existing rules and principles of
international law governing the matter. With that modification, all
the signatories to the pact necessarily accepted and bound
themselves to abide by all its implications, among them the
outlawing, proscription and renunciation of military occupation of
another nation's territory in the course of a war thus outlawed,
proscribed and renounced. This is only one way of saying that the
rules and principles of international law therefore existing on the

subject of military occupation were automatically abrogated and


rendered ineffective in all future cases of war coming under the ban
and condemnation of the pact.
If an unjustifiable war is a crime; if a war of aggression
constitutes an international crime; if such a war is an international
crime against the human species: a nation which occupies a foreign
territory in the course of such a war cannot possibly, under any
principle of natural or positive law, acquire or possess any
legitimate power or right growing out or incident to such
occupation. Concretely, Japan in criminally invading the
Philippines and occupying certain portions' of its territory during
the Pacific war, could not have nor exercise, in the legal sense
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and only in this sense should we speak herewith respect to this
country and its citizens, any more than could a burglar breaking
through a man's house pretends to have or to exercise any legal
power or right within that house with respect either to the person of
the owner or to his property. To recognize in the first instance any
legal power or right on the part of the invader, and in the second
any legal power or right on the part of the burglar, the same as in
case of a military occupant in the course of a justifiable war, would
be nothing short of legalizing the crime itself. It would be the most
monstrous and unpardonable contradiction to prosecute, condemn
and hang the appropriately called war criminals of Germany, Italy,
and Japan, and at the same time recognize any lawf ulness in their
occupation of territories they have so barbarously and feloniously
invaded. And let it not be f orgotten that the Philippines is a
member of the United Nations who have instituted and conducted
the so-called war crimes trials. Neither should we lose sight of the
further fact that this government has a representative in the
international commission currently trying the Japanese war
criminals in Tokyo. These facts leave no room for doubt that this
government is in entire accord with the other United Nations in
considering the Pacific war started by Japan as a crime. Not only
this, but this country had six years before the outbreak of the
Pacific war already renounced war as an instrument of national
policy (Constitution, Article II, section 2), thus in consequence
adopting the doctrine of the Briand-Kellogg Pact.
Consequently, it is submitted that it would be absolutely wrong
and improper for this Court to apply to the occupation by Japan of
certain areas of the Philippines during that war the rules and
principles of international law which might be applicable to a
military occupation occurring in the course of a justifiable war. How
can this Court recognize any lawfulness or validity in that
occupation when our own government has sent a representative to
said in-

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ternational commission in Tokyo trying the Japanese "war


criminals" precisely for the "crimes against humanity and peace"
committed by them during World War II of which said occupation
was but part and parcel? In such circumstances how could such
occupation produce no less an effect than the suspension of the
allegiance of our people to their country and government?
(b) But even in the hypothesisand not more than a mere
hypothesisthat when Japan occupied the City of Manila and
certain other areas of the Philippines she was engaged in a
justifiable war, still the theory of suspended allegiance would not
hold good, The continuance of the allegiance owed to a nation by its
citizens is one of those high privileges of citizenship which the law
of nations denies to the occupant the power to interfere with.
"* * * His (Of occupant) rights are not, however, commensurate with his
power. He is thus forbidden to take certain measures which he may be able
to apply, and that irrespective of their efficacy. The restrictions imposed
upon him are in theory designed to protect the individual in the enjoyment
of some highly important privileges. These concern his allegiance to the de
jure sovereign, his family honor and domestic relations, religious
convictions, personal service, and connection with or residence in the
occupied territory.
"The Hague Regulations declare that the occupant is forbidden to
compel the inhabitants to swear allegiance to the hostile power. * * *" (III
Hyde, International Law, 2d revised ed., pp. 18981899.)
"* * * Nor may he (occupant) compel them (inhabitants) to take an oath
of allegiance. Since the authority of the occupant is not sovereignty, the
inhabitants owe no temporary allegiance to him. * * *" (II Oppenheim,
International Law, pp. 341-344.)

The occupant's lack of authority to exact an oath of allegiance from


the inhabitants of the occupied territory is but a corollary of the
continuance of their allegiance to their own lawful sovereign. This
allegiance does not consist merely in obedience to the laws of the
lawful sovereign, but more essentially consists in loyalty or fealty to
him. In the same volume and pages of Oppenheim's work above
cited, after the passage to the effect that the inhabitants

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of the occupied territory owe no temporary allegiance to the
occupant it is said that "On the other hand, he may compel them to
take an oathsometimes called an 'oath of neutrality'* * *
willingly to submit to his 'legitimate commands.' Since, naturally,
such "legitimate commands" include the occupant's laws, it follows
that said occupant, where the rule is applicable, has the right to
compel the inhabitants to take an oath of obedience to his laws; and
since, according to the same rule, he cannot exact f rom the
inhabitants an oath of allegiance, it follows that obedience to his
laws, which he can exact from them, does not constitute allegiance.
(c) The theory of suspended allegiance is unpatriotic to the last
degree. To say that when one's country is unable to afford him its
protection, he ceases to be bound to it by the sacred ties of
allegiance, is to advocate the doctrine that precisely when his
country is in such distress, and therefore most needs his loyalty, he
is absolved from that loyalty. Love of country should be something
permanent and lasting, ending only in death; loyalty should be its
worthy offspring. The outward manifestation of one or the other
may for a time be prevented or thwarted by the irresistible action of
the occupant; but this should not in the least extinguish nor
obliterate the invisible feelings, and promptings of the spirit. And
beyond the unavoidable consequences of the enemy's irresistible
pressure, those invisible feelings and promptings of the spirit of the
people should never allow them to act, to speak, nor even to think a
whit contrary to their love and loyalty to the Fatherland. For them,
indicted, to face their country and say to it that, because when it
was overrun and vanquished by the barbarous invader and, in
consequence, was disabled from affording them protection, they
were released from their sacred obligation of allegiance and loyalty,
and could therefore freely adhere to its enemy, giving him aid and
comfort, incurring no criminal responsibility therefor, would only
tend to aggravate their crime.
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Laurel vs. Misa

II. CHANGE OF SOVEREIGNTY


Article II, section 1, of the Constitution provides that "Sovereignty
resides in the people and all government authority emanates from
them." The Filipino people are the self-same people before and after
Philippine Independence, proclaimed on July 4, 1946. During the
life of the Commonwealth sovereignty resided in them under the
Constitution; after the proclamation of independence that
sovereignty remained with them under the very same fundamental
law. Article XVIII of the said Constitution stipulates that the
government established thereby shall be known as the
Commonwealth of the Philippines; and that upon the final and
complete withdrawal of the sovereignty of the United States and
the proclamation of Philippine independence, "The Commonwealth
of the Philippines shall thenceforth be known as the Republic of the
Philippines." Under this provision the Government of the
Philippines immediately prior to independence was essentially to be
the identical government thereaf teronly the name of that
government was to be changed.
Both before and after the adoption of the Philippine Constitution
the people of the Philippines were and are always the plaintiff in all

criminal prosecutions, the case being entitled: "The People of the


Philippines vs. (the defendant or defendants)." This was already
true in prosecutions under the Revised Penal Code containing the
law of treason. "The Government of the Philippines" spoken of in
article 114 of said Code merely represents the people of the
Philippines. Said code was continued, along with the other laws, by
Article XVI, section 2, of the Constitution, which constitutional
provision further directs that "all references in such laws to the
Government or officials of the Philippine Islands shall be construed,
in so far as applicable, to refer er to the Government and
corresponding officials under this Constitution"of course,
meaning the Commonwealth of the Philippines before, and the
Republic of the
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Philippines after, independence (Article XVIII). Under both
governments sovereignty resided and resides in the people (Article
II, section 1). Said sovereignty was never transferred from that
peoplethey are the same people who preserve it to this day. There
has never been any change in this respect.
If one committed treason against the people of the Philippines
before July 4, 1946, he continues to be criminally liable for the
crime to the same people now. And if, following the literal wording
of the Revised Penal Code, as continued by the Constitution, that
accused owed allegiance upon the commission of the crime to the
"Government of the Philippines," in the textual words of the
Constitution (Articles XVI, section 2, and XVIII) that was the same
government which after independence became known as the
"Republic of the Philippines." The most that can be said is that the
sovereignty of the people became complete and absolute after
independencethat they became, politically, fully of age, to use a
metaphor. But if the responsibility for a crime against a minor is
not extinguished by the mere fact of his becoming of age, why
should the responsibility for the crime of treason committed against
the Filipino people when they were not fully politically independent
be extinguished after they acquire this status? The offended party
continues to be the sameonly his status has changed.
PARS, J., dissenting:
During the long period of Japanese occupation, all the political laws
of the Philippines were suspended. * This is in full harmony with
the generally accepted principles of international law adopted by
our Constitution (Article II, section 3) as a part of the law of the
Nation. Accordingly, we have on more than one occasion already
stated that "laws of a political nature or affecting political relations,
* * * are considered as suspended or in abeyance during the
military occupation" (Co Kim Cham vs. Valdez Tan Keh and Dizon,
75 Phil., 113, 124), and that the rule "that laws of political nature or
affecting political

886

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PHILIPPINE REPORTS ANNOTATED


Laurel vs. Misa

relations are considered suspended or in abeyance during the


military occupation, is intended for the governing of the civil
inhabitants of the occupied territory." (Ruffy vs. Chief of Staff,
Philippine Army, 75, Phil., 875,881.)
The principle is recognized by the United States of America,
which admits that the occupant will naturally suspend all laws of a
political nature and all laws which affect the welfare and safety of
his command, such action to be made known to the inhabitants.
(United States Rules of Land Warfare, 1940, Article 287.) As
allegiance to the United States is an essential element in the crime
of treason under article 114 of the Revised Penal Code, and in view
of its position in our political structure prior to the independence of
the Philippines, the rule as interpreted and practiced in the United
States necessarily has a binding force and effect in the Philippines,
to the exclusion of any other construction followed elsewhere, such
as may be inferred, rightly or wrongly, from the isolated cases'
brought to our attention, which, moreover, have entirely different
factual bases.
Corresponding notice was given by the Japanese occupying army,
first, in the proclamation of its Commander in chief of January 2,
1942, to the effect that as a "result of the Japanese Military
operations, the sovereignty of the United States of America over the
Philippines has completely disappeared and the Army hereby
proclaims the Military Administration under martial law over the
districts occupied by the Army;" secondly, in Order No. 3 of the said
Commander in Chief of February 20, 1942, providing that
"activities of the administrative organs and judicial courts in the
Philippines shall be based upon the existing statutes, orders,
ordinances and customs until further orders provided that they are
not inconsistent with
_______________
1 English case of De Jager vs. Attorney General of Naval; Belgian case of
Auditeur Militaires vs. Van Dieren; cases of Petain, Laval and Quisling.

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the present circumstances under the Japanese Military
Administration;" and, thirdly, in the explanations to Order No. 3
reminding that "all laws and regulations of the Philippines have
been suspended since Japanese occupation," and excepting the
application of "laws and regulations which are not proper to act
under the present situation of the Japanese Military
Administration," especially those "provided with some political
purposes."
The suspension of political laws during enemy occupation is
logical, wise and humane. The latter phase outweighs all other
aspects of the principle aimed more' or less at promoting the
necessarily selfish motives and purposes of a military occupant. It is
thus consoling to note that the powers instrumental in the
crystallization of the Hague Conventions of 1907 did not forget to
declare that they were "animated by the desire to serve * * * the
interests of humanity and the over progressive needs of
civilization," and that "in cases not included in the Regulations
adopted by them, the inhabitants and the belligerents remain under
the protection and the rule of the principles of international law, as
they result from the usages established among civilized peoples,

from the laws of humanity, and the dictates of the public


conscience." These saving statements come to the aid of the
inhabitants in the occupied territory in a situation wherein, even
before the belligerent occupant "takes a further step and by
appropriate affirmative action undertakes to acquire the right of
sovereignty for himself, * * * the occupant is likely to regard himself
as clothed with freedom to endeavor to impregnate the people who
inhabit the area concerned with his own political ideology, and to
make that endeavor successful by various forms of pressure exerted
upon enemy officials who are permitted to retain the exercise of
normal governmental functions." (Hyde, International Law, Vol. III,
Second Revised Edition, 1945, p. 1879.)
The inhabitants of the occupied territory should necessarily be
bound to the sole authority of the invading
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PHILIPPINE REPORTS ANNOTATED


Laurel vs. Misa

power, whose interests and requirements are naturally in conflict


with those of the displaced government, if it is legitimate for the
military occupant to demand and enforce from the inhabitants such
obedience as may be necessary for the security of his forces, for the
maintenance of law and order, and for the proper administration of
the country (United States Rules of Land Warfare, 1940, article
297), and to demand all kinds of services "of such a nature as not to
involve the population in the obligation of taking part in military
operations against their own country" (Hague Regulations, article
52); and if, as we have in effect said, by the surrender the
inhabitants pass under a temporary allegiance to the government of
the occupant and are bound by such laws, and such only, as it
chooses to recognize and impose, and the belligerent occupant 'is
totally independent of the constitution and the laws of the territory,
since occupation is an aim of warfare, and the maintenance and
safety of his forces, and the purpose of war, stand in the foreground
of his interest and must be promoted under all circumstances or
conditions." (Peralta vs. Director of Prisons, 75 Phil., 285, 295),
citing United States vs. Rice, 4 Wheaton, 246, and quoting
Oppenheim, International Law, Vol. II, Sixth Edition, Revised,
1944, p. 432.)
He would be a bigot who cannot or would refuse to see the cruel
result if the people in an occupied territory were required to obey
two antagonistic and opposite powers. To emphasize our point, we
would adopt the argument, in a reverse order, of Mr. Justice Hilado
in Peralta vs. Director of Prisons (75 Phil., 285, 358), contained in
the following passage:
"To have bound those of our people who constituted the great majority who
never submitted to the Japanese oppressors, by the laws, regulations,
processes and other acts of those two puppet governments, would not only
have been utterly unjust and downright illegal, but would have placed
them in the absurd and impossible condition of being simultaneously
submitted to two mutually hostile governments, with their respective
constitutional and legislative

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enactments and institutionson the one hand bound to continue owing
allegiance to the United States and the Commonwealth Government, and,
on the other, to owe allegiance, if only temporary, to Japan."

The only sensible purpose of the treason lawwhich is of political


complexion and taken out of the territorial law and penalized as a
new offense committed against the belligerent occupant, incident to
a state of war and necessary for the control of the occupant
(Alcantara vs. Director of Prisons, 75 Phil., 494),must be the
preservation of the nation, certainly not its destruction or
extermination. And yet the latter is unwittingly wished by those
who are fond of the theory that what is suspended is merely the
exercise of sovereignty by the de jure government or the latter's
authority to impose penal sanctions or that, otherwise stated, the
suspension refers only to the military occupant. If this were to be
the only effect, the rule would be a meaningless and superfluous
optical illusion, since it is obvious that the fleeing or displaced
government cannot, even if it should want, physically assert its
authority in a territory actually beyond its reach, and that the
occupant, on the other hand, will not take the absurd step of
prosecuting and punishing the inhabitants for adhering to and
aiding it. If we were to believe the opponents of the rule in question,
we have to accept the absurd proposition that the guerrillas can all
be prosecuted with illegal possession of firearms. It should be borne
in mind that "the possession by the belligerent occupant of the right
to control, maintain or modify the laws that are to obtain within the
occupied area is an exclusive one. The territorial sovereign driven
theref rom, can not compete with it on an even plane. Thus, if the
latter attempts interference, its action is a mere manifestation of
belligerent effort to weaken the enemy. It has no bearing upon the
legal quality of what the occupant exacts, while it retains control.
Thus if the absent territorial sovereign, through some quasilegislative decree, forbids its nationals to comply with what the
occupant has ordained obedience to
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PHILIPPINE REPORTS ANNOTATED


Laurel vs. Misa

such command within the occupied territory would not safeguard


the individual f rom prosecution by the occupant." (Hyde,
International Law, Vol. III, Second Revised Edition, 1945, p. 1886.)
As long as we have not outlawed the right of the belligerent
occupant to prosecute and punish the inhabitants for "war treason"
or "war crimes," as an incident of the state of war and necessity for
the control of the occupied territory and the protection of the army
of the occupant, against which prosecution and punishment such
inhabitants cannot obviously be protected by their native sovereign,
it is hard to understand how we can justly rule that they may at the
same time be prosecuted and punished for an act penalized by the
Revised Penal Code, but already taken out of the territorial law and
penalized as a new offense committed against the belligerent
occupant.
In Peralta vs. Director of Prisons. 75 Phil., 285, 296), we held
that "the Constitution of the Commonwealth Government was
suspended during the occupation of the Philippines by the Japanese
forces or the belligerent occupant at regular war with the United
States," and the meaning of the term "suspended" is very plainly
expressed in the folliwing passage (page 298) :

"No objection can be set up to the legality of its provisions in the light of
the precepts of our Commonwealth Constitution relating to the rights of
accused under that Constitution, because the latter was not in force during
the period of the Japanese military occupation, as we have already stated.
Nor may said Constitution be applied upon its revival at the time of the reoccupation of the Philippines by virtue of the principle of postliminium,
because 'a constitution should operate prospectively only, unless the words
employed show a clear intention that it should have a retrospective effect,'
(Cooley's Constitutional Limitations, seventh edition, page 97, and a case
quoted and cited in the foot-note), especially as regards laws of procedure
applied to cases already terminated completely."
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Laurel vs. Misa


In much the same way, we should hold that no treason could have
been committed during the Japanese military occupation against
the United States or the Commonwealth Government, because
article 114 of the Revised Penal Code was not then in force. Nor
may this penal provision be applied upon its revival at the time of
the reoccupation of the Philippines by virtue of the principle of
postliminium, because of the constitutional inhibition against any
ex post facto law and because, under article 22 of the Revised Penal
Code, criminal laws shall have a retroactive effect only in so far as
they favor the accused. Why did we refuse to enforce the
Constitution, more essential to sovereignty than article 114 of the
Revised Penal Code in the aforesaid case of Peralta vs. Director of
Prisons if, as alleged by the majority, the suspension was good only
as to the military occupant?
The decision in United States vs. Rice (4 Wheaton, 246),
conclusively supports our position. As analyzed and described in
United States vs. Reiter (27 Fed. Cas., 773), that case "was decided
by the Supreme Court of the United Statesthe court of highest
human authority on that subjectand as the decision was against
the United States, and in favor of the authority of Great Britain, its
enemy in the war, and was made shortly after the occurrence of the
war out of which it grew; and while no department of this
Government was inclined to magnify the rights of Great Britain or
disparage those of its own government, there can be no suspicion of
bias in the mind of the court in favor of the conclusion at which it
arrived, and no doubt that the law seemed to the court to warrant
and demand such a decision. That case grew out of the war of 1812,
between the United States and Great Britain. It appeared that in
September, 1814, the British forces had taken the port of Castine,
in the State of Maine, and held it in military occupation; and that
while it was so held, foreign goods, by the laws of the United States
subject to duty, had been introduced into that port without paying

892

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PHILIPPINE REPORTS ANNOTATED


Laurel vs. Misa,

duties to the United States. At the close of the war the place was by
treaty restored to the United States, and after that was done the
Government of the United States sought to recover from the
persons so introducing the goods there while in possession of the
British, the duties to which by the laws of the United States, they
would have been liable. The claim of the United States was that its
laws were properly in force there, although the place was at the
time held by the British forces in hostility to the United States, and
the laws, therefore, could not at the time be enforced there; and
that a court of the United States (the power of that government
there having since been restored) was bound so to decide. But this
illusion of the prosecuting officer there was dispelled by the court in
the most summary manner. Mr. Justice Story, that great luminary
of the American bench, being the organ of the court in delivering its
opinion, said: The single question is whether goods imported into
Castine during its occupation by the enemy are liable to the duties
imposed by the revenue laws upon goods imported into the United
States. * * * We are all of opinion that the claim for duties cannot be
sustained. * * * The sovereignty of the United States over the
territory was, of course, suspended, and the laws of the United
States could no longer be rightfully enforced there, or be obligatory
upon the inhabitants who remained and submitted to the
conquerors. By the surrender the inhabitants passed under a
temporary allegiance of the British Government, and were bound by
such laws, and such only, as it chose to recognize and impose. From
the nature of the case no other laws could be obligatory upon them.
* * * Castine was therefore, during this period, as far as respected
our revenue laws, to be deemed a foreign port, and goods imported
into it by the inhabitants were subjects to such duties only as the
British Government chose to require. Such goods were in no correct
sense imported into the United States.' The court then proceeded to
say, that the case is the same
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Laurel vs. Misa


as if the port of Castine had been foreign territory, ceded by treaty
to the United States, and the goods had been imported there
previous to its cession. In this case they say there would be no
pretense to say that American duties could be demanded; and upon
principles of public or municipal law, the cases are not
distinguishable. They add at the conclusion of the opinion: The
authorities cited at the bar would, if there were any doubt, be
decisive of the question. But we think it too clear to require any aid
from authority.' Does this case leave room for a doubt whether a
country held as this was in armed belligerent occupation, is to be
governed by him who holds it, and by him alone? Does it not so
decide in terms as plain as can be stated? It is asserted by the
Supreme Court of the United States with entire unanimity, the
great and venerated Marshall presiding, and the erudite and
accomplished Story delivering the opinion of the court, that such is
the law, and it is so adjudged in this case. Nay, more: it is even
adjudged that no other laws could be obligatory; that such country,
so held, is for the purpose of the application of the law off its former
government to be deemed foreign territory, and that goods imported
there (and by parity of reasoning other acts done there) are in no
correct sense done within the territory of its former sovereign, the
United States."
But it is alleged by the majority that the sovereignty spoken of in

the decision of the United States vs. Rice should be construed to


refer to the exercise of sovereignty, and that, if sovereignty itself
was meant, the doctrine has become obsolete after the adoption of
the Hague Regulations in 1907. In answer, we may state that
sovereignty can have any important significance only when it may
be exercised; and, to our way of thinking, it is immaterial whether
the thing held in abeyance is the sovereignty itself or its exercise,
because the point cannot nullify, vary, or otherwise vitiate the plain
meaning of the doctrinal words "the laws of the United States could
no longer be right894

894

PHILIPPINE REPORTS ANNOTATED


Laurel vs. Misa

fully enforced there, or be obligatory upon the inhabitants who


remained and submitted to the conquerors." We cannot accept the
theory of the majority, without in effect violating the rule of
international law, hereinabove adverted to, that the possession by
the belligerent occupant of the right to control, maintain or modify
the laws that are to obtain within the occupied area is an exclusive
one, and that the territorial sovereign driven therefrom cannot
compete with it on an even plane. Neither may the doctrine in
United States vs. Rice be said to have become obsolete, without
repudiating the actual rule prescribed and followed by the United
States, allowing the military .occupant to suspend all laws of a
political nature and even require public officials and the
inhabitants to take an oath of fidelity (United States Rules of Land
Warfare, 1940, article 309). In fact, it is a recognized doctrine of
American Constitutional Law that mere conquest or military
occupation of a territory of another State does not operate to annex
such territory to the occupying State, but that the inhabitants of
the occupied district, no longer receiving the protection of their
native State, for the time being owe no allegiance to it, and, being
under the control and protection of the victorious power, owe to that
power fealty and -obedience. (Willoughby, The Fundamental
Concepts of Public Law [1931], p. 364.)
The majority have resorted to distinctions, more apparent than
real, if not immaterial, in trying to argue that the law of treason
was obligatory on the Filipinos during the Japanese occupation.
Thus it is insisted that a citizen or subject owes not a qualified and
temporary, but an absolute and permanent allegiance, and that
"temporary allegiance" to the military occupant may be likened to
the temporary allegiance which a foreigner owes to the government
or sovereign of the territory wherein he resides in return for the
protection he receives therefrom. The comparison is most
unfortunate. Said foreigner is in the territory of a power not hostile
to or in actual war with his own gov-

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Laurel vs. Misa


ernment; he is in the territory of a power which has not suspended,
under the rules of international law, the laws of political nature of
his own government; and the protections received by him from that
friendly or neutral power is real, not the kind of protection which
the inhabitants of an occupied territory can expect from a
belligerent army. "It is but reasonable that States, when they
concede to other States the right to exercise jurisdiction over such of
their own nationals as are within the territorial limits of such other
States, should insist that those States should provide system of law
and of courts, and in actual practice, so administer them, as to f
urnish substantial legal justice to alien residents. This does not
mean that a State must or should extend to aliens within its
borders all the civil, or much less, all the political rights or
privileges which it grants to its own citizens; but it does mean that
aliens must or should be given adequate opportunity to have such
legal rights as are granted to them by the local law impartially and
judicially determined, and, when thus determined, protected."
(Willoughby, The Fundamental Concepts of Public Law [1931], p.
360.)
When it is therefore said that a citizen of a sovereign may be
prosecuted for and convicted of treason committed in a foreign
country or, in the language of article 114 of the Revised Penal Code,
"elsewhere," a territory other than one under belligerent occupation
must have been contemplated. This would make sense, because
treason is a crime "the direct or indirect purpose of which is the
delivery, in whole or in part, of the country to a foreign power, or to
pave the way f or the enemy to obtain dominion over the national
territory" (Albert, The Revised Penal Code, citing 3 Groizard, 14);
and, very evidently, a territory already under occupation can no
longer be "delivered."
The majority likewise argue that the theory of suspended
sovereignty or allegiance will enable the military occupant to legally
recruit the inhabitants to fight against their own government,
without said inhabitants being liable for trea896

896

PHILIPPINE REPORTS ANNOTATED


Laurel vs. Misa

son. This argument is not correct, because the suspension does not
exempt the occupant from complying with the Hague Regulation
(article 52) that allows it to demand all kinds of services provided
that they do not involve the population "in the obligation of taking
part in military operations against their own country." Neither does
the suspension prevent the inhabitants from assuming a passive
attitude, much less from dying and becoming heroes if compelled by
the occupant to fight against their own country. Any imperfection in
the present state of international law should be corrected by such
world agency as the United Nations organization.
It is of common knowledge that even with the alleged cooperation
imputed to the collaborators, an alarming number of Filipinos were
killed or otherwise tortured by the ruthless, or we may say savage,
Japanese Army. Which leads to the conclusion that if the Filipinos
did not obey the Japanese commands and f eign cooperation, there
would not be any Filipino nation that could have been liberated.
Assuming that the entire population could go to and live in the
mountains, or otherwise fight as guerrillasafter the f ormal
surrender of our and the American regular fighting forces,they
would have faced certain annihilation by the Japanese, considering

the latter's military strength at the time and the long period during
which they were left militarily unmolested by America. In this
connection, we hate to make reference to the atomic bomb as a
possible means of destruction.
If a substantial number of guerrillas were able to survive and
ultimately help in the liberation of the Philippines, it was because
the f eigned cooperation of their countrymen enabled them to get
food and other aid necessary in the resistance movement. If they
were able to survive, it was because they could camouflage
themselves in the midst of the civilian population in cities and
towns. It is easy to argue now that the people could have merely
followed their ordinary pursuits of life or otherwise be indifferent to
the
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Laurel vs. Misa


occupant. The fundamental defect of this line of thought is that the
Japanese are assumed to be so stupid and dumb as not to notice
any such attitude. During belligerent occupation, "the outstanding
fact to be reckoned with is the sharp opposition between the
inhabitants of the occupied areas and the hostile military force
exercising control over them. At heart they remain at war with each
other. Fear for their own safety may not serve to deter the
inhabitants from taking advantage of opportunities to interfere
with the safety and success of the occupant, and in so doing they
may arouse its passions and cause it to take vengeance in cruel
fashion. Again, even when it is untainted by such conduct, the
occupant as a means of attaining ultimate success in its major
conflict may, under plea of military necessity, and regardless of
conventional or customary prohibitions, proceed to utilize the
inhabitants within its grip as a convenient means of military
achievement." (Hyde, International Law, Vol. III, Second Revised
Edition [1945], p. 1912.) It should be stressed that the Japanese
occupation was not a matter of a few months; it extended over a
little more than three years. Said occupation was a fact, in spite of
the "presence of guerrilla bands in barrios and mountains, and even
in towns of the Philippines whenever these towns were left by
Japanese garrisons or by the detachments of troops sent on patrol
to those places." (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75
Phil., 371, 373.) The law of nations accepts belligerent occupation as
a fact to be reckoned with, regardless of the merits of the occupant's
cause. (Hyde, International Law, Second Revised Edition [1945],
Vol. III, p. 1879.)
Those who contend or fear that the doctrine herein adhered to
will lead to an over-production of traitors, have a wrong and low
conception of the psychology and patriotism of their countrymen.
Patriots are such after their birth in the first place, and no amount
of laws or judicial decisions can make or unmake them. On the
other hand, the

898

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PHILIPPINE REPORTS ANNOTATED


Laurel vs. Misa

Filipinos are not so base as to be insensitive to the thought that the


real traitor is cursed everywhere and in all ages. Our patriots who
fought and died during the last war, and the brave guerrillas who
have survived, were undoubtedly motivated by their inborn love of
country, and not by such a thing as the treason law. The Filipino
people, as a whole, passively opposed the Japanese regime, not out
of fear of the treason statute but because they preferred and will
prefer the democratic and civilized way of life and American
altruism to Japanese barbaric and totalitarian designs. Of course,
there are those who might at heart have been pro-Japanese; but
they met and will unavoidably meet the necessary consequences.
The regular soldiers faced the risks of warfare; the spies and
informers subjected themselves to the perils of military operations,
likely received summary liquidation or punishments from the
guerrillas and the parties injured by their acts, and may be
prosecuted as war spies by the military authorities of the returning
sovereign; those who committed other common crimes, directly or
through the Japanese army, may be prosecuted under the municipal
law, and under this group, even the spies and informers, Makapili
or otherwise, are included, for they can be made answerable for any
act offensive to person or property; the buy-and-sell opportunists
have the war profits tax to reckon with. We cannot close our eyes to
the conspicuous fact that, in the majority of cases, those responsible
for the death of, or injury to, any Filipino or American at the hands
of the Japanese, were prompted more by personal motives than by a
desire to levy war against the United States or to adhere to the
occupant. The alleged spies and informers found in the Japanese
occupation the royal road to vengeance against personal or political
enemies. The recent amnesty granted to the guerrillas for acts,
otherwise criminal, committed in the furtherance of their resistance
movement has in a way legalized the penal sanctions imposed by
them upon the real traitors.
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It is only from a realistic, practical and common-sense point of view,
and by remembering that the obedience and cooperation of the
Filipinos were effected while the Japanese were in complete control
and occupation of the Philippines, when their mere physical
presence implied force and pressureand not after the American
forces of liberation had restored the Philippine Governmentthat
we will come to realize that, apart from any rule of international
law, it was necessary to release the Filipinos temporarily from the
old political tie in the sense indicated herein. Otherwise, one is
prone to dismiss the reason for such cooperation and obedience. If
there were those who did not in any wise coperate or obey, they can
be counted by the fingers, and let their names adorn the pages of
Philippine history. Essentially, however, everybody who took
advantage, to any extent and degree, of the peace and order
prevailing during the occupation, for the safety and survival of
himself and his family, gave aid and comfort to the enemy.
Our great liberator himself, General Douglas MacArthur, had
considered the laws of the Philippines ineffective during the
occupation, and restored to their full vigor and force only after the
liberation. Thus, in his proclamation of October 23, 1944, he
ordained that "the laws now existing on the statute books of the
Commonwealth of the Philippines * * * are in full force and effect
and legally binding upon the people in areas of the Philippines free
of enemy occupation and control," and that "all laws * * * of any

other government in the Philippines than that of the said


Commonwealth are null and void and without legal effect in areas
of the Philippines free of enemy occupation and control." Repeating
what we have said in Co Kim Cham vs. Valdez Tan Keh and Dizon
(75 Phil., 113, 133), "it is to be presumed that General Douglas
MacArthur, who was acting as an agent or a representative of the
Government and the President of the United States, constitutional
Commander-in-Chief of the United States
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PHILIPPINE REPORTS ANNOTATED


Laurel vs. Misa

Army, did not intend to act against the principles of the law of
nations asserted by the Supreme Court of the United States from
the early period of its existence, applied by the President of the
United States, and later embodied in theHague Conventions of
1907."
The prohibition in the Hague Conventions (Article 45) against
"any pressure on the population to take oath to the hostile power,"
was inserted for the moral protection and benefit of the inhabitants,
and does not necessarily carry the implication that the latter
continue to be bound to the political laws of the displaced
government. The United States, a signatory to the Hague
Conventions, has made the point clear, by admitting that the
military occupant can suspend all laws of a political nature and
even require public officials and the inhabitants to take an oath of
fidelity (United States Rules of Land Warfare, 1940, article 309),
and as already stated, it is a doctrine of American Constitutional
Law that the inhabitants, no longer receiving the protection of their
native state, for the time being owe no allegiance to it, and being
under the control and protection of the victorious power, owe to that
power fealty and obedience. Indeed, what is prohibited is the
application of force by the occupant, from which it is fair to deduce
that the Conventions do not altogether outlaw voluntary
submission by the population. The only strong reason for this is
undoubtedly the desire of the authors of the Conventions to give as
much freedom and allowance to the inhabitants as are necessary for
their survival. This is wise and humane, because the people should
be in a better position to know what will save them during the
military occupation than any exile government.
"Before he was appointed prosecutor, Justice Jackson made a
speech in which he warned against the use of the judicial process
for nonjudicial ends, and attacked cynics who 'see no reason why
courts, just like other agencies, should not be policy weapons. If we
want to shoot Germans as a matter of policy, let it be done as such, said he,

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but don't hide the deed behind a court. If you are determined to
execute a man in any case there is no occasion for a trial; the world
yields no respect for courts that are merely organized to convict/
Mussolini may have got his just desserts, but nobody supposes he
got a fair trial. * * * Let us bear that in mind as we go about
punishing criminals. There are enough laws on the books to convict
guilty Nazis without risking the prestige of our legal system. It is
far, far better that some guilty men escape than that the idea of law
be endangered. In the long run the idea of law is our best defense
against Nazism in all its forms." These passages were taken from
the editorial appearing in the Life, May 28, 1945, page 34, and
convey ideas worthy of some reflection.
If the Filipinos in fact committed any errors in feigning
cooperation and obedience during the Japanese military occupation,
they were at mostborrowing the famous and significant words of
President Roxaserrors of the mind and not of the heart. We
advisedly said "feigning" not as an admission of the fallacy of the
theory of suspended allegiance or sovereignty, but as an affirmation
that the Filipinos, contrary to their outward attitude, had always
remained loyal by feeling and conscience to their country.
Assuming that article 114 of the Revised Penal Code was in force
during the Japanese military occupation, the present Republic of
the Philippines has no right to prosecute treason committed against
the former sovereignty existing during the Commonwealth
Government which was none other than the sovereignty of the
United States. This court has already held that, upon a change of
sovereignty; the provisions of the Penal Code having to do with such
subjects as treason, rebellion and sedition are no longer in force
(People vs. Perfecto, 43 Phil., 887). It is true that, as contended by
the majority, section 1 of Article II of the Constitution of the
Philippines provides that "sovereignty resides in the people," but
this did not make the Commonwealth Government or the Filipino
people sov902

902

PHILIPPINE REPORTS ANNOTATED


Laurel vs. Misa

ereign, because said declaration of principle, prior to the


independence of the Philippines, was subservient to and controlled
by the Ordinance appended to the Constitution under which, in
addition to its many provisions essentially destructive of the
concept of sovereignty, it is expressly made clear that the
sovereignty of the United States over the Philippines had not then
been withdrawn. The framers of the Constitution had to make said
declaration of principle because the document was ultimately
intended f or the independent Philippines. Otherwise, the Preamble
should not have announced that one of the purposes of the
Constitution is to secure to the Filipino people and their posterity
the "blessings of independence." No one, we suppose, will dare
allege that the Philippines was an independent country under the
Commonwealth Government.
The Commonwealth Government might have been more
autonomous than that existing under the Jones Law, but its nonsovereign status nevertheless remained unaltered; and what was
enjoyed was the exercise of sovereignty delegated by the United
States whose sovereignty over the Philippines continued to be
complete.
"The exercise of Sovereignty May be Delegated.It has already been seen

that the exercise of sovereignty is conceived of as delegated by a State to


the various organs which, collectively, constitute the Government. For
practical political reasons which can be easily appreciated, it is desirable
that the public policies of a State should be formulated and executed by
governmental agencies of its own creation and which are not subject to the
control of other States. There is, however, nothing in a nature of
sovereignty or of State life which prevents one State from entrusting the
exercise of certain powers to the governmental agencies of another State.
Theoretically, indeed, a sovereign State may go to any extent in the
delegation of the exercise of its power to the governmental agencies of
other States, those governmental agencies thus becoming quoad hoc parts
of the governmental machinery of the State whose sovereignty is
exercised. At the same time these agencies do not cease to be
instrumentalities for the expression of the will of the State by which they
were originally created.
"By this delegation the agent State is authorized to express the will of
the delegating State, and the legal hypothesis is that this
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Laurel vs. Misa


State possesses the legal competence again to draw to itself the exercise,
through organs of its own creation, of the powers it has granted. Thus,
States may concede to colonies almost complete autonomy of government
and reserve to themselves a right of control of so slight and so negative a
character as to make its exercise a rare and improbable occurrence; yet, so
Iong as such right of control is recognized to exist, and the autonomy of the
colonies is conceded to be founded upon a grant and the continuing consent
of the mother countries the sovereignty of those mother countries over
them is complete and they are to be considered as possessing only
administrative autonomy and not political independence. Again, as will be
more fully discussed in a later chapter, in the so-called Confederate or
Composite State, the cooperating States may yield to the central
Government the exercise of almost all of their powers of Government and
yet retain their several sovereignties. Or, on the other hand, a State may,
without parting with its sovereignty of lessening its territorial application,
yield to the governing organs of particular areas such an amplitude of
powers as to create of them bodies-politic endowed with almost all of the
characteristics of independent States. In all States, indeed, when of any
considerable size, efficiency of administration demands that certain
autonomous powers of local self-government be granted to particular
districts." (Willoughby, The Fundamental Concepts of Public Law [1931],
pp. 74, 75.)

The majority have drawn an analogy between the Commonwealth


Government and the States of the American Union which, it is
alleged, preserve their own sovereignty although limited by the
United States. This is not true for it has been authoritatively stated
that the Constituent States have no sovereignty of their own, that
such autonomous powers as they now possess are had and exercised
by the express will or by the constitutional forbearance of the
national sovereignty, and that the sovereignty of the United States
and the non-sovereign status of the individual States is no longer
contested.
"It is therefore plain that the constituent States have no sovereignty of
their own, and that such autonomous powers as they now possess are had
and exercised by the express will or by the constitutional forbearance of
the national sovereignty. The Supreme Court of the United States has held
that, even when selecting members for the national legislature, or electing
the President, or ratifying proposed amendments to the federal
Constitution, the States

904

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PHILIPPINE REPORTS ANNOTATED


Laurel vs. Misa

act, ad hoc, as agents of the National Government." (Willoughby, The


Fundamental Concepts of Public Law [1931], p. 250.)
"This is the situation at the present time. The sovereignty of the United
States and the non-sovereign status of the individual States is no longer
contested." (Willoughby, The Fundamental Concepts of Public Law [1931],
pp. 251, 252.)

Article XVIII of the Constitution provides that "The government


established by this Constitution shall be known as the
Commonwealth of the Philippines. Upon the final and complete
withdrawal of the sovereignty of the United States and the
proclamation of Philippine independence, the Commonwealth of the
Philippines shall thenceforth be known as the Republic of the
Philippines." From this, the deduction is made that the Government
under the Republic of the Philippines and under the
Commonwealth is the same. We cannot agree. While the
Commonwealth Government possessed administrative autonomy
and exercised the sovereignty delegated by the United States and
did not cease to be an instrumentality of the latter (Willoughby, The
Fundamental Concepts of Public Law [1931], pp. 74, 75), the
Republic of the Philippines is an independent State not receiving its
power or sovereignty from the United States. Treason committed
against the United States or against its instrumentality, the
Commonwealth Government,-which exercised, but did not possess,
sovereignty (id., p. 49), is therefore not treason against the
sovereign and independent Republic of the Philippines. Article
XVIII was inserted in order, merely, to make the Constitution
applicable to the Republic.
Reliance is also placed on section 2 of the Constitution which
provides that all laws of the Philippine Islands shall remain
operative, unless inconsistent therewith, until amended, altered,
modified or repealed by the Congress of the Philippines, and on
section 3 which is to the effect that all cases pending in courts shall
be heard, tried, and determined under the laws then in force,
thereby insinuating that these constitutional provisions authorize
the Republic of the Philippines to enforce article 114 of the Revised
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Laurel vs. Misa


Penal Code. The error is obvious. The latter article can remain
operative under the present regime if it is not inconsistent with the
Constitution. The fact remains, however, that said penal provision
is fundamentally incompatible with the Constitution, in that those
liable for treason thereunder should owe allegiance to the United
States or the Government of the Philippines, the latter being, as we
have already pointed out, a mere instrumentality of the former,
whereas under the Constitution of the present Republic, the
citizens of the Philippines do not and are not required to owe
allegiance to the United States. To contend that article 114 must be
deemed to have been modified in the sense that allegiance to the
United States is deleted, and, as thus modified, should be applied to
prior acts, would be to sanction the enactment and application of an
ex post facto law.
In reply to the contention of the respondent that the Supreme
Court of the United States has held in the case of Bradford vs.
Chase National Bank (24 Fed. Supp., 38), that the Philippines had
a sovereign status, though with restrictions, it is sufficient to state
that said case must be taken in the light of a subsequent decision of

the same court in Cincinnati Soap Co. vs. United States (301 U. S.,
308), rendered in May, 1937, wherein it was affirmed that the
sovereignty of the United States over the Philippines had not been
withdrawn, with the result that the earlier case can -only be
interpreted to refer to the exercise of sovereignty by the Philipines
as delegated by the mother country, the United States.
No conclusiveness may be conceded to the statement of President
Roosevelt on August 12, 1943, that "the United States in practice
regards the Philippines as having now the status as a government
of other independent nationsin fact all the attributes of complete
and respected nationhood," since said statement was not meant as
having accelerated the date, much less as a formal proclamation of,
the Philippine Independence as contemplated in the Ty906

906

PHILIPPINE REPORTS ANNOTATED


In re Gregorio, applicant for Ice Plant Service

dings-McDuffie Law, it appearing that (1) no less also than the


President of the United States had to issue the proclamation of July
4, 1946, withdrawing the sovereignty of the United States and
recognizing Philippine Independence; (2) it was General MacArthur,
and not President Osmea who was with him, that proclaimed on
October 23, 1944, the restoration of the Commonwealth
Government; (3) the Philippines was not given official participation
in the signing of the Japanese surrender; (4) the United States
Congress, and not the Commonwealth Government, extended the
tenure of office of the President and VicePresident of the
Philippines.
The suggestion that as treason may be committed against the
Federal as well as against the State Government, in the same way
treason may have been committed against the sovereignty of the
United States as well as against the sovereignty of the Philippine
Commonwealth, is immaterial because, as we have already
explained, treason against either is not and cannot be treason
against the new and different sovereignty of the Republic of the
Philippines.
Petition denied.
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